Seoul Administrative Court-2017-Gu -60369 ( November 17, 2017)

If a new disposition is made in accordance with the purport of the judgment within the period of exclusion even before the judgment becomes final and conclusive, it shall be deemed within the exclusion period of national tax imposition.

Where a taxpayer contests the initial disposition of imposition through an appeal procedure, etc., it is reasonable to deem that the disposition of imposition again is possible at any time during the procedure of objection, and in such a case, the exclusion period under Article 26-2 (1) of the former Framework Act on National Taxes is not applicable.

Article 26-2 of the former Framework Act on National Taxes (Period for Excluding Imposition of National Taxes)

Global Income Detailed and Revocation of Disposition

Gangwon A

Samsung Head of Samsung Tax Office

Seoul Administrative Court Decision 2017Guhap60369 decided November 17, 2017

on October 18, 2018

on January 24, 2018

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance court shall be revoked. The defendant shall revoke the imposition of each additional tax on May 13, 2016, stated in the details of the attached disposition against the plaintiff.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning this case is as follows: (a) the court changed the term "a previous suit" in Section 3, Section 7 of the judgment of the court of first instance to the term "a previous suit" (hereinafter referred to as the "prior suit"); (b) the term "tax disposition" in Section 21 to the term "taxation disposition"; and (c) the following Paragraph 2 to the following following the 4th 19th 19th ; and (d) the ground for the judgment of the court of first instance is the same as the ground for the judgment of the court of first instance except for adding the judgment as referred to in the following Paragraph 3; and (b)

2. Additional parts

Under the tax law, additional taxes are administrative sanctions imposed, as prescribed by the Act, in cases where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim. Therefore, it cannot be subject to such sanctions in cases where there are justifiable grounds for not being able to cause the taxpayer to neglect his/her duties, such as in cases where there are circumstances where it is unreasonable for the taxpayer to be unable to know his/her duties due to the existence of conflicting views in the interpretation of the tax law beyond the scope of simple legal sites or misunderstandings, or where it is unreasonable for the taxpayer to expect the performance of his/her duties to be performed, or where there are circumstances where it is unreasonable for the taxpayer to expect the performance of his/her duties to be performed. However, the determination that the taxpayer is exempt from the obligation to pay taxes by interpretation of his/her own name is merely merely a lot of land or misunderstanding, and thus, in such a case, it does not constitute justifiable grounds not constitute a violation of the tax law.

3. Additional matters to be determined;

A. The plaintiff's assertion

The imposition of penalty tax on global income tax for the year 2007 among the imposition of penalty tax in the instant case (hereinafter “the imposition of penalty tax for the year 2007”) shall be revoked on the ground that it was made after the exclusion period of the imposition of national tax was expired.

B. Determination

In light of the following circumstances, which are acknowledged as comprehensively taking account of the overall purport of arguments as to Gap evidence 3, 4, 5, Eul evidence 6-1 through 4, Eul evidence 1 through 4, the imposition of additional tax in 2007 cannot be deemed unlawful after the lapse of the exclusion period for the imposition of national tax. Thus, the plaintiff's above assertion is without merit.

1) Article 26-2(1) of the former Framework Act on National Taxes (amended by Act No. 8830, Dec. 31, 2007; hereinafter the same) provides for the general exclusion period of the right to impose national taxes, and Article 26-2(2) provides that where a decision or ruling is made with respect to an objection, request for examination or adjudgment with respect to the imposition of national taxes, request for examination or adjudgment under the Board of Audit and Inspection Act, or litigation under the Administrative Litigation Act, a decision or ruling may be made, notwithstanding the provisions of paragraph (1), until one year has passed from the date such decision or

2) The above provision was prepared in order to prevent unreasonable cases, which make it impossible to make a disposition in accordance with the judgment, etc., in a case where the procedure of litigation, such as a request for administrative appeal or administrative litigation, is delayed for a long period, and the judgment, etc. is conducted after the exclusion period has expired (see Supreme Court Decisions 94Da3667, Aug. 26, 1994; 93Nu4885, May 10, 1996; 96Nu68, Sept. 24, 196).

3) However, in the preceding case brought by the Plaintiff against the Defendant, the appellate court revoked the imposition of each additional tax on the grounds that the imposition of each additional tax, including the imposition of global income tax, reverted to March 16, 2016, was defective in the tax payment notice, and rendered a judgment dismissing the remainder of the Plaintiff’s appeal. Accordingly, only the Plaintiff filed an appeal.

4) On May 13, 2016, the Defendant issued a disposition imposing penalty tax in 2007 again by supplementing the defect in the duty payment notice in accordance with the above judgment. Meanwhile, in the preceding case, the Supreme Court rendered a judgment that the Plaintiff’s appeal is dismissed on August 17, 2016.

5) (1) In light of the contents of Article 26-2(2) of the former Framework Act on National Taxes, legislative purport of the above provision, and the fact that there is no ground to view that the above provision is only permissible to make a favorable decision or to implement a judgment that is favorable to taxpayers, a taxation authority cannot impose any disposition, such as a new decision or decision of correction of increase, as well as a decision of correction of reduction, etc., upon expiration of the exclusion period. However, in a case where a taxpayer contests the initial imposition disposition through the appeal procedure, including an appeal litigation, the taxation authority accepted the whole or part of the taxpayer’s objection, and corrected or cancels the initial imposition disposition, as well as to supplement the defect of the duty payment notice, it is reasonable to view that the exclusion period under Article 26-2(1) of the former Framework Act on National Taxes is not applicable to the Plaintiff’s imposition disposition, even if it is possible at any time during the procedure of objection, and the period of exclusion under Article 26-2(1) of the former Framework Act on National Taxes becomes unlawful after the lapse of 207 years prior to the above decision.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed in its entirety as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.